Creationists, atheists battle over copyrights, criticism, and the DMCA

"Dr. Dino" might be in jail, but his organization lives on, and it has been …

Any group that believes a worldwide flood created the Grand Canyon 4,000 years ago, that Cain married his sister, and that the King James translation of the Bible is inerrant must be used to a certain level of skeptical questioning, even downright hostility, but it doesn't mean that they enjoy it. Creation Science Evangelism, whose founder Kent Hovind ("Dr. Dino") was recently sentenced to ten years in prison for tax evasion, has been sending out DMCA takedown notices to YouTube in an attempt to halt the criticism. Now, critics claim that CSE has perjured itself by filing the claims.

The Rational Response Squad was one of the groups that had videos taken down. The group doesn't shy away from controversy (motto: "Fighting to free humanity from the mind disorder known as theism"), and had posted a set of videos that feature clips from CSE's own productions; these were then rebutted (the group did not respond to a request for comment).

A few days back, user "cseministry" began sending out DMCA takedown notices, which require the sender to swear under penalty of perjury that he or she owns the copyright to the material in question and that said material is in fact infringing on that copyright. Filing false takedown claims can result in lawsuits and penalties.

The case raises two issues: 1) Does CSE own the copyrights to the clips in question and 2) is the use of those clips "fair use"? The first question is tough to answer. As another YouTube user illustrates well, CSE's videos were explicitly not copyrighted for many years and users were encouraged to share them. This certainly seems to count as putting the material in the public domain, but CSE did an about-face in 2005 and began claiming copyright on all its products, even those which it had previously said were not copyrighted.

Was this legal? Ars contacted CSE, and a spokesman there told us that they had spoken with the US Copyright Office. "We were assured that our materials are not considered public domain, but rather works that enjoyed copyright protection from its creation," CSE told us. "The Copyright Office clarified that a copyright notice is optional for any works distributed after 1989. The Copyright Office assured us that we are within our rights to put restrictions on our copyright at any time."

This is of course true, but it omits a crucial issue—the fact that CSE seems to have waived its copyright in the past. As Stanford's librarians point out, "dedicating" a work to the public domain by swearing off copyright can in fact remove copyright protection from that work. If this had not happened, then CSE could certainly enforce most restrictions regardless of whether it had "filed" for a copyright or had included a copyright notice in the past. But swearing off copyright muddies the water substantially.

Regarding the issue of fair use, CSE again asked the Copyright Office and "they explained that 'fair use' can be widely interpreted," we were told. Again, this is absolutely true; fair use is elastic by definition so that it cover a multitude of situations. But the law clearly spells out at least some of the situations in which fair use can be claimed. Criticism, comment, news reporting, and teaching are all on the list. Criticism from groups like the Rational Response Squad certainly seems to be covered, but this is one of those determinations that only a judge can make with authority.

CSE hopes it won't come to that. The group tells Ars that it "does not intend to turn this into a battle." In their view, other groups are using their work for nothing more than propaganda and fund-raising and should be stopped. CSE's copyright page now says that materials can still be copied but must be "unedited."

Still, the group seems to have acknowledged that zeal ran ahead of knowledge when it came to these DMCA takedowns. CSE tells Ars that "we submitted to YouTube a list of files which we withdrew our claim of copyright on. YouTube will use their discretion and take appropriate action on those files. The remainder of the files, we have good faith belief infringed on our copyright."

If CSE really has admitted that some of its takedown requests were in error, it could in fact be in trouble if charges are pursued. DMCA takedowns aren't the sort of thing that can be dashed off and remedied at leisure; false claims can leave the claimant on the hook for perjury.

And they may get a court fight. The Rational Responders are showing a surprising bit of emotion (given their name) and have resorted to threats of the "Creation Science Ministries picked the wrong people to f--- with" variety.